Analysis and Commentary on Constitutional Law
When Can Administrative Claims Preclude Constitutional Claims?

Justia columnist and attorney David Kemp discusses a case argued before the U.S. Supreme Court on the first day of its 2013-2014 Term. That case, Madigan v. Levin, raises the question whether the Age Discrimination in Employment Act (ADEA) precludes age discrimination claims brought directly under the Equal Protection Clause. Kemp notes that the particular facts of the case and the tone of arguments at the Supreme Court suggest that the Court may not decide the case on the merits. However, he argues that the case does present important questions on the power of Congress to abrogate individuals’ right to sue for constitutional violations, and its duty to do so only when the statutory remedies are both adequate and broadly accessible.

The Tea Party Is Exploiting the Framers’ Blind Spot on Political Parties

How has a minority in the House been able to hold the country and the global economy hostage? Justia columnist and Cornell law professor Michael Dorf’s answer is a matter of ideology, politics, and constitutional structure. As Dorf explains, Congress was not designed to work with political parties and has only been awkwardly retrofitted to do so.

Is Virginia the Next Major Same-Sex Marriage Battlefield?

Justia columnist and attorney David Kemp describes two recent lawsuits filed in Virginia challenging that state’s laws prohibiting same-sex marriages. Kemp describes the two cases, explains why Virginia is a favorable venue for such legal challenges, and notes the prevalence of other similar cases around the country. Kemp concludes that the existence of so many cases challenging discriminatory laws must be seen as a step in the right direction for same-sex marriage advocates.

Don’t Expect the Latest Mass Shootings to Produce Gun Control Legislation

Justia columnist and Cornell law professor Michael Dorf contends that mass shootings will never lead to gun-control laws. While he notes that the gun lobby plainly plays a role in that situation, Dorf also sees the difficulty of getting such laws passed as a failure of democracy: Although more people favor than oppose additional gun-control measures, the gun-control opponents appear to favor gun rights with greater intensity than the intensity with which the majority favors gun control.

Should Schools Stalk Students Online to Prevent Cyberbullying?

Justia columnist and University of Washington law professor Anita Ramasastry comments on a Southern California school district’s decision to retain a private firm to search the Web and look for public posts, photos, tweets, and other communications made by its students. The district’s stated purpose for retaining the firm is to prevent students from harming others—and, in particular, to stop cyberbullying. But Ramasastry notes that the company that does the monitoring also finds out a lot of other information about students, as well.

When Is a Public School Student’s Online Speech About School Violence Cause for Concern?

Justia columnist and attorney Julie Hilden comments on a recent Ninth Circuit case regarding the tension between the right to free speech and fears that such speech might spur school violence. Another issue that the case raises is whether the well-known Tinker test for public school student speech needs to be modified or augmented in the Internet Age.

What To Expect From the Supreme Court’s Abortion Case This Term

Justia columnist and Cornell law professor Sherry Colb comments on the United States Supreme Court’s June grant of certiorari in Cline v. Oklahoma Coalition for Reproductive Justice. The new case confronts the regulation of medically induced abortion and, Colb predicts, may prove to be important and surprising. Colb provides a particular focus here on Justice Kennedy’s possible views on abortion issues.

Playing “Too Womany” and the Problem of Masculinity in Sport

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and University of Pittsburgh law professor Deborah Brake comment on the 40th anniversary of Title IX, which transformed athletics for women and girls. Yet, they note, serious problems remain. Grossman and Brake note issues such as the cost of prizing masculinity in sports and the collateral damage of masculinity, including rape, gang-rape, and male-on-male hazing and assault. They also discuss the daunting task of changing sport culture, suggesting that community sports programs, especially in the younger years, should encourage more co-ed play, so that kids learn young to respect all athletes, both male and female, at a young age.

Does the First Amendment Protect Begging?

Justia columnist and attorney Julie Hilden comments on the U.S Court of Appeals for the Sixth Circuit’s decision invalidating Michigan’s criminal anti-begging statute. The ACLU successfully argued in court that begging is protected, as speech, by the First Amendment. Hilden agrees with the ruling, but also raises the more difficult question of aggressive begging’ and how it can be regulated to strike an appropriate free speech balance.

Precisely How Much Academic Freedom Should (Does) the First Amendment Afford to Professors and Teachers at Public Schools? The Ninth Circuit’s Take in the Recent Demers v. Austin Case

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, analyze an important and interesting decision, Demers v. Austin, involving the First Amendment academic-freedom rights of public school and university faculty members that was handed down last week by the United States Court of Appeals for the Ninth Circuit. Amar and Brownstein argue that that a more concrete and categorical framework for resolving academic freedom disputes than the Ninth Circuit's needs to be fashioned.

Could the President Bomb Syria Even If Congress Says No?

Justia columnist and Cornell law professor Michael Dorf comments on President Obama’s options in Syria. Dorf notes that Secretary of State John Kerry’s position is that the President can act without Congress. But Dorf calls that position profoundly misguided, citing international law and the U.N. Charter on the use of force. Dorf also points out that Congressional approval cannot substitute for Security Council authorization. Moreover, he comments on prior presidents who faced situations in which there was a lack of Congressional authorization for the use of force.

A South Carolina Same-Sex Marriage Challenge, and Predictions as to the Outcome of Future Litigation in This Area

Justia columnist and attorney David Kemp discusses a recent case filed in federal court in South Carolina challenging the state’s prohibition on same-sex marriages. Kemp describes the facts and arguments of that case, Bradacs v. Haley, and compares it to another recent case filed in Ohio challenging that state’s own laws precluding recognition of same-sex marriages. Kemp notes one particular parallel between arguments in the two cases and predicts, based on this parallel, that we will see similar challenges in several other states with comparably structured domestic relations laws.

The New Mexico Supreme Court Applies Anti-Discrimination Law to Wedding Photographer Refusing to Photograph Same-Sex Commitment Ceremonies

Justia columnist and Cornell law professor Sherry Colb comments on the New Mexico Supreme Court's decision to uphold the application of the state’s anti-discrimination law to a wedding photography business that had refused to photograph a same-sex commitment ceremony. The decision, as Colb explains, means that, in New Mexico, most businesses may not refuse service to gay and lesbian couples on the basis of either the First Amendment freedom of expression or the First Amendment freedom of religion, even if the business at issue involves an expressive component, and even though the people who own or operate the business might harbor religious objections to same-sex relationships. Colb focuses, among other points, on a concurring opinion that she contends shows a laudable sensitivity to the feelings of people who experience themselves as aggrieved by anti-discrimination laws.

Falling Dominoes: Same-Sex Spouses Gain More Recognition Rights

Hofstra law professor and Justia columnist Joanna Grossman comments on recent same-sex marriage developments, including Justice Ginsburg’s performing a same-sex wedding ceremony; the ruling in United States v. Windsor; changes in the way in which same-sex couples now will be treated by the IRS and Social Security Administration, as well as by HHS regarding Medicare benefits; and the Obergefell v. Kasich case, which raised the issue of whether a same-sex marriage would be reflected on a death certificate.

Why Leaker Chelsea Manning Should Receive Appropriate Medical Care in Prison

Justia columnist and attorney David Kemp discusses the request by government leaker Chelsea Manning, formerly Bradley Manning, that she receive hormone treatment while in military prison. Kemp discusses several decisions by federal courts, all of which have held that prisons are constitutionally required to provide transgender inmates with necessary medical care. He argues that as a matter of public policy and constitutional law, the military prison holding Manning should also provide her needed medical care.

New Accusations by a Nixon Apologist Based on Recently Discovered Information Regarding the Watergate Cover-Up Trial

Justia columnist and former counsel to the president John Dean comments on Watergate revisionism, and, in particular, Geoff Shepard’s recent piece in The Atlantic claiming that Nixon’s top advisers did not get justice when they were convicted for conspiracy, obstruction of justice, and perjury. Dean strongly differs with Shepard’s account, and explains precisely why. Among other points, Dean rebuts Shepard’s claim that former Watergate Special Prosecutor Leon Jaworski and Judge Sirica held secret ex parte meetings which were unlawful.

A Federal Court Holds New York Stop-and-Frisk Policy Unconstitutional in Floyd v. City of New York

Justia columnist and Cornell law professor Sherry Colb discusses a recent federal court decision finding New York City liable for its stop-and-frisk policy. The court found that the City had violated the Fourth Amendment’s guarantee against unreasonable searches and seizures, as well as the Fourteenth Amendment’s Equal Protection Clause’s guarantee against discrimination. Colb notes that the ruling is significant in that it validates the sense of some New Yorkers, especially those who belong to minority groups, that there has been unsupportable and arbitrary police behavior in this respect. In addition, Colb raises a narrow disagreement with a portion of the court's analysis that may help clarify some of the obstacles we face in detecting discriminatory intent, in this and other contexts where the issue arises. Relatedly, Colb also comments on the use of baselines in decisionmaking.

Was a Tennessee Judge Right to Reject a Child’s Parents’ Choice of the Name “Messiah” for Their Baby Boy?

Justia columnist and attorney Julie Hilden comments on a Tennessee case in which a magistrate overrode a child's parents' wish to name their child "Messiah," based on the magistrate's own religious convictions. Hilden argues that the magistrate was out of line in her decision, which Hilden contends should be reversed, as does the Tennessee ACLU.

Another Front in the Same-Sex Equality Campaign: Jury Service, Peremptory Challenges, and the Smithkline Beecham Corp. v. Abbott Laboratories Case Pending in the Ninth Circuit

Justia columnist and U.C., Davis law professor Vikram David Amar comments on Smithkline Beecham Corp. v. Abbott Laboratories, which is being argued next month in the U.S. Court of Appeals for the Ninth Circuit. At issue is whether it is constitutionally permissible for a lawyer to eliminate would-be jurors from a case because of their sexual orientation. The issue arose in this antitrust lawsuit involving HIV medications, when an attorney exercised a peremptory strike to remove a possible juror from inclusion in the jury because, he said, the would-be juror was “or appears to be, could be, homosexual.” (Peremptory strikes allow each side of a case to remove a certain number of would-be jurors based on a hunch or intuition.)

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more